Core principles of tort - Defences to negligence

Learning Outcomes

After reading this article, you will be able to identify and clearly explain the principal defences available to a claim in negligence. You will understand the elements required for each defence, know when each may apply, and recognise key exam pitfalls. The article provides tested SQE2 practice questions and worked examples to strengthen your understanding of consent, contributory negligence, and illegality in the context of tort.

SQE2 Syllabus

For SQE2, you are required to understand the defences to negligence from both a technical and practical standpoint. Focus your revision on:

• the constituent elements and legal requirements for the main defences to negligence
• how each defence affects a claimant’s right to recover damages
• the difference between partial and complete defences
• how statutory restrictions affect defences such as consent in road accident claims
• effectively applying these principles to realistic fact scenarios involving tort disputes

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A driver negligently injures a passenger. The passenger knew the driver was uninsured and intoxicated and accepted a lift. Which defence(s) might be available?
2. What two elements must a defendant prove to establish the defence of consent (volenti) in negligence?
3. Does a finding of contributory negligence completely defeat a claim?
4. If a claimant is injured while jointly committing a burglary, can they recover damages in negligence?

Introduction

Negligence is subject to several main defences that can limit or extinguish a defendant’s liability. For SQE2, you must apply these defences to fact patterns and understand both their scope and key legal requirements. The principal defences are consent (volenti non fit injuria), contributory negligence, and illegality (ex turpi causa non oritur actio).

Defences to Negligence

The main defences you need to cover are explained here, with worked examples, exam tips, and essential definitions.

Consent (Volenti Non Fit Injuria)

If the claimant freely agreed to accept the risk of harm from the defendant’s conduct, the claim is barred.

Key Term: consent (volenti non fit injuria)
The complete defence that a claimant freely and voluntarily agreed to accept the risk of injury arising from the defendant’s negligence.

Key Term: voluntary assumption of risk
The principle behind consent: the claimant knew the risk and willingly accepted it.

To succeed, the defendant must prove:

1. The claimant had full knowledge of the nature and extent of the particular risk.
2. The claimant voluntarily accepted the risk, expressly or impliedly.

Consent is rarely established as courts generally require clear evidence that the claimant chose to run the risk rather than had it imposed on them. In employment relationships or where a claimant has little realistic alternative, true consent will not be found.

Statutory Restrictions

Statute may prevent reliance on consent. For example, section 149 of the Road Traffic Act 1988 bars the consent defence for passengers injured in road accidents.

Worked Example 1.1

A passenger agrees to a lift from a driver they know is drunk. Later, due to the driver’s negligence, a crash occurs and the passenger is injured. Can the driver argue consent?

Answer:
The driver may try to argue consent because the passenger knew of the state of intoxication. However, courts are unlikely to find that the passenger truly accepted the risk of negligent driving unless the danger was glaring and the acceptance entirely voluntary. If the accident involves a motor vehicle, statute prevents the consent defence for passengers.

Exam Warning

The defence of consent is strict: mere knowledge of the risk is not enough—willing acceptance is required. Watch for SQE2 questions relying only on knowledge.

Contributory Negligence

If the claimant’s carelessness contributed to their injury, damages may be reduced.

Key Term: contributory negligence
A partial defence reducing the claimant’s damages in proportion to their own lack of reasonable care contributing to their injury.

Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 enables the court to apportion damages according to the claimant’s share of fault.

• Claimant need only have contributed to the damage, not necessarily caused the accident.
• Applies to adults and, in appropriate cases, to children.
• No fixed minimum reduction—the percentage reflects what is “just and equitable”.

Worked Example 1.2

A car accident is caused entirely by D. C, a passenger, is not wearing a seatbelt and suffers injuries that would have been less severe with a seatbelt. Will C’s damages be reduced?

Answer:
Yes. Not wearing a seatbelt was a failure to take reasonable care for one’s own safety. Damages are reduced according to the injury that would have been prevented (e.g., 25% if all injury would have been avoided; see Froom v Butcher guidelines).

Revision Tip

Always identify which injuries were contributed to by the claimant’s negligence. Contributory negligence usually does not defeat the claim but reduces any damages awarded.

Illegality (Ex Turpi Causa Non Oritur Actio)

A claimant may be barred from recovery if pursuing the claim would be contrary to public policy due to their unlawful conduct.

Key Term: illegality (ex turpi causa non oritur actio)
A complete defence where the claimant’s action arises directly from, and is inseparably connected to, criminal or seriously unlawful conduct.

The illegality must be sufficiently connected to the claim. For example, recovery is barred for injuries sustained while jointly committing a crime for which recovery would be an affront to the administration of justice.

Worked Example 1.3

C and D are jointly carrying out a burglary. C is injured through D’s negligent driving during their escape. Can C sue D for damages?

Answer:
The claim will fail. Injury was sustained in the course of joint criminal enterprise. Applying the defence of illegality, a civil claim is barred.

Key Point Checklist

This article has covered the following key knowledge points:

• Consent (volenti non fit injuria) requires full knowledge of the risk and a voluntary, genuine acceptance.
• Statute may bar use of the consent defence, especially for road accident passengers.
• Contributory negligence reduces damages, not liability, reflecting the claimant’s contribution to their own injury.
• Apportionment of damages for contributory negligence is flexible and decided case by case.
• Illegality is a complete defence: claims are barred if based directly on the claimant’s criminal or seriously unlawful acts.
• To apply defences accurately in SQE2, you must address every element: knowledge, acceptance, statutory bars, proportion of fault, or connection to illegality.

Key Terms and Concepts

• consent (volenti non fit injuria)
• voluntary assumption of risk
• contributory negligence
• illegality (ex turpi causa non oritur actio)